1. Prosecutors love to prove that a defendant has a prior criminal record because it effectively negates the presumption of innocence. Empirical studies show that jurors are willing to give an accused the benefit of the presumption of innocence only if this is the accused's first offense. Once he has proved himself to be "a criminal," the jury assumes he is guilty. Proving that the defendant is a criminal or has criminal tendencies, would seem to be prohibited as character evidence.
2. The admissibility of evidence of crimes other than the one for which the defendant is on trial is unique among character issues. It comes up so often in criminal cases that it has its own special rule, Rule 404(b). Note that the definition of "other crimes" is broad -- the Rule refers to "other crimes, wrongs or acts," and does not say that those other criminal acts need ever have resulted in arrest, prosecution, or conviction. The Rule applies equally to a certified copy of a court record of conviction or a witness who claims to have seen the defendant commit a criminal act that was never reported to the police.
3. Although Rule 404(b) usually comes up in criminal cases, some states (but not all) apply it to civil cases as well.
4. Rule 404(b) states the general character evidence rule that evidence of other crimes is not admissible to prove that the defendant has criminal tendencies.
5. Rule 404(b) provides that it may, however, be admissible for any of eight other reasons:
--Motive
--Opportunity
--Intent
--Preparation
--Plan
--Knowledge
--Identity
--Absence of mistake/accident
6. Evidence of a criminal acts committed at the same time as the crime charged is admissible in some jurisdictions to "complete the telling of the story." For example, a defendant charged with robbery may have fled in a car stolen in a different state. The officer who apprehended him may describe the stolen car even though it is an "other crime," in order to complete the story of the robbery. Evidence offered to complete the story is analyzed under Rule 403, not 404.
7. Even if evidence falls into one of these eight categories, it is not automatically admissible. It is merely relevant, and that probative value must be weighed
against prejudicial effect under Rule 403.
a) Evidence that the defendant committed crimes other than and in addition to the one for which he is on trial has obvious prejudicial effect. It arouses the
emotions of the jury and tends to confuse the issues, as the defendant must now defend himself against more than one charge.
b) Evidence of a prior act unrelated to the present one is also normally of low probative value, because it is remote from the elements of the current indictment.
c) Therefore, as a general rule, evidence of other crimes offered under Rule 404(b) should normally be excluded under Rule 403 as too prejudicial and
insufficiently probative, unless one of the eight non-character reasons is a genuinely disputed issue.
8. As a general rule, the judge cannot know whether one of these eight issues is genuinely disputed until after the defense presents its case, so the evidence is usually not admissible until rebuttal.
9. A general plea of "not guilty" places identity and motive in issue. It does not place intent in issue except in a specific intent crime.
11. COMMON ISSUE #1: IDENTITY. Other crimes (usually for the same offense) are admissible if:
a) identity is disputed,
b) the other crimes were committed reasonably close in time to the charged offense
c) the state can show that the defendant committed the other crimes
d) all crimes were committed in a distinctive and unique way, so that we can say confidently that the same person committed all of them
12. COMMON ISSUE #2: MOTIVE. Other crimes (usually different offenses) are admissible if:
a) motive is disputed
b) the other crimes were committed reasonably close in time to the charged offense
c) the state can show that the defendant committed the other crimes
d) the other crimes must establish a unique motive for the crime charged beyond the motives of others who commit this same crime. A common example is
proving that the defendant charged with murder was formerly accused of extortion -- and killed the key witness against him. You cannot prove that the
defendant accused of robbery was a drug user, because drug use provides no unique motive for bank robbery. Every person who robs a bank is motivated by a
desire to get money, so proving that the defendant is a drug user to show that he needed money proves no unique motive.
13. COMMON ISSUE #3: MENS REA. Other crimes (usually similar ones) are admissible if:
a) The defendant denies some aspect of mens rea, such as knowledge or criminal intent.
b) The other crimes were committed reasonably close in time to the charged offense
c) The state can show that the defendant committed the other crimes
d) The state can show that the defendant had the requisite knowledge or intent when the other crime was committed. For example, in the Patty Hearst case, she
claimed she was forced to participate in the bank robbery. If the state could show she willingly participated in other crimes with her captors, it would be
relevant to rebut the claim of duress.